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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13295
________________________
D.C. Docket No. 1:14-cv-03283-RWS
GRANGE MUTUAL CASUALTY COMPANY,
Plaintiff-Appellant,
versus
BORIS WOODARD,
SUSAN WOODARD,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 23, 2016)
Before HULL and BLACK, Circuit Judges, and MORENO, * District Judge.
HULL, Circuit Judge:
*
Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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This case arises from an automobile accident involving the Dempseys and
the Woodards, in which Thomas Dempsey was at fault. Dempsey was insured by
Grange Mutual Casualty Company (the “Insurer Grange”). The Woodards offered
the Insurer Grange a settlement within the Dempseys’ policy limits of $100,000.
The Insurer Grange argues that it properly accepted the settlement offer, forming a
binding contract. The Woodards, however, argue that the Insurer Grange failed to
comply fully with the terms of the offer and that the Insurer Grange, therefore,
never accepted the offer. This case implicates O.C.G.A. § 9-11-67.1, a new
Georgia statute governing settlement offers for personal injury and death claims
arising from motor vehicle accidents. No court has yet interpreted § 9-11-67.1.
After review, and with benefit of oral argument, we find that it is necessary to
certify questions of Georgia law to the Georgia Supreme Court concerning the
interpretation of § 9-11-67.1.
I. BACKGROUND
A. Factual Background
These facts are not disputed. On March 20, 2014, Thomas Dempsey, an
Ohio resident, was driving his car in Georgia with his wife, Delann Dempsey, as a
passenger. Dempsey collided with a car operated by Boris Woodard in which his
adult daughter, Anna Woodard, was a passenger. Both Boris and Anna Woodard
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sustained injuries during the accident. Anna’s were fatal, and she subsequently
died.
The Dempseys carried car insurance through the Insurer Grange. The
Dempseys’ liability limits for bodily injury claims were $50,000 per person and
$100,000 per accident.
The Insurer Grange learned of the accident on March 21, 2014, and assigned
Senior Claims Representative Heather Conn (“Adjuster Conn”) to handle the
Woodards’ prospective bodily injury claims against the Dempseys. Adjuster Conn
attempted to contact Boris Woodard. On April 4, 2014, Conn received a letter of
representation from Woodard’s attorney, T. Shane Peagler (“Attorney Peagler”) of
the Law Offices of Michael Lawson Neff, P.C. Attorney Peagler and Adjuster
Conn communicated several times about the Woodards’ claims.
On June 19, 2014, Attorney Peagler mailed Adjuster Conn a “time-limited
demand,” i.e., a settlement offer, for Boris Woodard’s personal injury claim and
for Boris and Susan Woodards’ wrongful death claim for their daughter Anna. The
title of the June 19 letter was “Offer to Settle Tort Claims Made Pursuant to
O.C.G.A. § 9-11-67.1 and O.C.G.A. § 51-12-14.” The Woodards offered a limited
release of their claims against the Dempseys and the Insurer Grange in exchange
for the $100,000 policy limit.
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The Woodards’ June 19 letter contained an 11-item list of requirements for
the Insurer Grange to comply with to accept the settlement offer. A statement,
typed in bold, preceded the list and said: “The following items must be noted and
fully and strictly complied with in order to accept this offer.” The items most
relevant to this appeal (numbers 1-5) are summarized below.
(1) “Pursuant to O.C.G.A. § 9-11-67.1, you have 30 days from
your receipt of this offer to accept it.”
(2) “Your acceptance of this offer must be made in writing to me at
the above address shown in my letterhead. If we do not
actually receive a timely acceptance, this offer will be deemed
rejected . . . .”
(3) Acceptance requires affidavits from Thomas Dempsey, Delann
Dempsey, and a Grange officer, swearing to the policy limits.
“All three affidavits must be received in my office within ten
(10) days after your written acceptance of this offer to settle.
Timely compliance with this paragraph is an essential element
of acceptance.”
(4) “If payment is not tendered in cash pursuant to OCGA 9-11-
67.1(f)(1), payment in the amount of $50,000 must be made
payable to ‘Boris and Susan Woodard and Michael L. Neff,
their attorney for the wrongful death of their daughter, Anna
Woodard’ within ten (10) days after your written acceptance of
this offer to settle. Timely payment is an essential element of
acceptance.”
(5) “If payment is not tendered in cash pursuant to OCGA 9-11-
67.1(f)(1), payment in the amount of $50,000 must be made
payable to ‘Boris Woodard and Michael L. Neff, his attorney’
within ten (10) days after your written acceptance of this offer
to settle. Timely payment is an essential element of
acceptance.”
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Adjuster Conn received the June 19 offer via certified mail on June 23. Attorney
Peagler agreed to give the Insurer Grange until July 23 (which was 30 days) to
accept the offer. If the offer was accepted in writing, then Attorney Peagler’s letter
provided that payment in the amount of $50,000 per claim must be made “within
ten (10) days after your written acceptance of this offer to settle.”
On July 22, Adjuster Conn mailed Attorney Peagler a letter accepting the
settlement offer. Adjuster Conn’s letter (dated July 22) stated that, per Peagler’s
instructions, the affidavits and checks would “follow under separate cover within
the time constraints outlined (10 days from acceptance of your demand).” Ten
days from the July 22 acceptance letter was August 1. On July 29, within the 10-
day window set to expire on August 1, Adjuster Conn emailed Attorney Peagler
the affidavits. In her July 29 email, Conn stated that the checks were being issued
that day.
Adjuster Conn ordered the two settlement checks through the Insurer
Grange’s automated claims payment system. According to Conn, this is the
Insurer Grange’s routine practice for ordering checks to pay claims. Adjusters pull
the mailing address for the checks from contact information previously uploaded
into the Insurer Grange’s system. The adjusters order the checks to go to the
address on file, and then the checks are printed and mailed from a central location.
The adjusters never see the checks. Adjuster Conn followed this process for
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mailing the settlement checks on July 29, using the contact information that was in
the system for “Michael L Neff PC.” Again, Attorney Peagler worked for the Law
Offices of Michael Lawson Neff, P.C.
On August 11, attorney Michael Neff (“Attorney Neff”) contacted Adjuster
Conn on behalf of the Woodards, and the two talked on August 12. Attorney Neff
told Conn that the settlement checks had not arrived and that, therefore, the parties
never reached a binding settlement agreement because the Insurer Grange had
failed to accept the Woodards’ offer in a timely fashion. Adjuster Conn was
surprised because she had mailed the checks on July 29 and had received nothing
indicating that they had been returned. Furthermore, Adjuster Conn believed that
the parties had a binding settlement agreement based on the Insurer Grange’s July
22 written acceptance of the Woodards’ offer. 1 Adjuster Conn offered to reissue
new checks for overnight delivery, but Attorney Neff was unwilling to accept
them.
Conn stopped payment on the original checks and issued new checks. The
Insurer Grange’s records show that the stated reason for stopping payment on the
checks was “wrong address.” On August 12, Adjuster Conn mailed the new
checks to Attorney Neff, along with copies of screenshots confirming the July 29
1
Adjuster Conn’s affidavit is unclear about whether she conveyed these sentiments to
Attorney Neff.
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timely issuance of the original checks. According to Conn’s accompanying letter
to Neff, the screenshots showed that the law office’s address was complete in the
“address tab,” but “somehow drop[ped] off in the mail/billing address tab.” Conn
apologized for the fact that there had been an “error while processing the checks.”
On August 14, Attorney Neff emailed Adjuster Conn to say that the
Woodards would not accept the reissued checks. That same day, Attorney Neff
sent a letter returning the reissued checks and stating that the Woodards rejected
the Insurer Grange’s untimely response to the settlement offer and that they would
be filing a lawsuit in the near future.
In an affidavit filed in this case, Adjuster Conn stated that she later
examined the Insurer Grange’s records and confirmed that the company had the
correct address for Attorney Neff’s law firm. Adjuster Conn hypothesized that the
checks never arrived because a portion of the address was “dropped from the actual
checks that were printed,” though she could not be certain of this because she
never saw the checks. Adjuster Conn stated that the original checks still had not
been returned to Insurer Grange.
During his deposition, Thomas Dempsey stated that “[s]omebody that works
for Grange” told him that the wrong address was put on the envelopes. Dempsey
thought that the person he spoke to was Heather Conn. Dempsey said that Conn
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told him about the address issue sometime after the agreed-upon time to accept the
offer had expired.
Keith Johnson, the Insurer Grange’s Assistant Vice President of Application
Development (information technology), executed an affidavit as well. Johnson
stated that he researched the issuance and mailing of the checks. He confirmed
that they were issued on July 29 and mailed on July 30. However, when Johnson
created “test checks” using the information in the Insurer Grange’s system, the
street was missing from the mailing address printed on the checks. The record
suggests that the Insurer Grange used envelopes with clear plastic windows to mail
checks so that the mailing address printed on the checks would show through.
Johnson concluded: “It seems, therefore, the street address was likely missing from
the July 2014 checks.”
B. Procedural History
On October 10, 2014, the Insurer Grange filed a one-count complaint against
Boris and Susan Woodard. The Insurer Grange alleged breach of the settlement
contract and, as relief, requested specific performance of the contract and
attorney’s fees.
In its complaint, the Insurer Grange alleged that a binding and enforceable
settlement agreement was formed on July 23, when it sent Attorney Peagler its
written acceptance letter. No one disputes that Attorney Peagler received the
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letter. Furthermore, the Insurer Grange argued that it performed its duties with
respect to payment when it issued and mailed the checks within 10 days, on July
29.
The Woodards filed a motion to dismiss, arguing that the existence of a
settlement agreement was an affirmative defense that should be addressed within
the tort suit arising from the car crash. The Woodards eventually withdrew this
motion and filed an answer, in which they denied that the parties ever formed a
settlement contract. Alternatively, they claimed that, if there were such a contract,
it was either (a) rendered null and void by failure of consideration or (b) rescinded
because the Insurer Grange failed to timely perform.
The Woodards also filed a motion for summary judgment claiming that no
settlement contract was formed. They argued that timely payment was a condition
of acceptance of their June 19 offer, and that, because the Insurer Grange did not
actually send them payment within the stated time limits, Grange never accepted
their settlement offer. Thus, as a matter of law, they argued, the Insurer Grange
rejected the settlement offer when the 10-day time limit to accept the offer (and
make timely payment) expired (after August 1, 2014). The Woodards stressed that
their offer complied with state law.
The Insurer Grange cross-moved for summary judgment and responded to
the Woodards’ motion, principally arguing that the parties had formed a binding
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settlement contract. The Insurer Grange argued that the Woodards’ offer letter
clearly demanded a written acceptance within 30 days (by July 23, 2014) and not
acceptance in the form of payment. Additionally, the Insurer Grange claimed that
O.C.G.A. § 9-11-67.1, a recently-enacted statute that the Woodards cited multiple
times in their offer letter, made written correspondence the sole means of accepting
the Woodards’ offer. The Insurer Grange suggested that the statute did not
contemplate or authorize unilateral contracts that required full performance (here,
payment) as the required means of accepting the offer. In any event, the Insurer
Grange added, it complied with the Woodards’ demand to make payment
“payable” within 10 days of its written acceptance by “making out” the checks
before that deadline passed. The Insurer Grange emphasized that the offer letter
did not demand that payment actually be “deliver[ed]” by a date certain.
Notably too, the offer letter required that the affidavits “must be received” in
Attorney Peagler’s office within 10 days after written acceptance, but did not
mention delivery or receipt of the checks. In effect, the Insurer Grange contended
that issuing or delivering the checks was an issue of contract performance, rather
than contract formation.
The Woodards filed a reply brief in support of their motion that also served
as a response to the Insurer Grange’s cross-motion. They agreed that their offer
was to form a unilateral contract, stressing that it unambiguously demanded timely
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payment as a condition of acceptance, and argued that Georgia law did not prevent
them from contracting in that fashion. They also contended that, even if their offer
did not comply with § 9-11-67.1, the proper result would be a determination that
no contract was formed. On the latter point, the Woodards stressed that the Insurer
Grange had cited no legal authority that would allow a court to alter the plain terms
of an offer even if the offer’s terms were prohibited by § 9-11-67.1, and that § 9-
11-67.1 “does not provide a remedy for noncompliance.”
On the issue of whether the Insurer Grange accepted the Woodards’ offer,
the Woodards argued that Grange did not make timely payment (as required to
accept their offer) because it did not actually mail checks that were properly
addressed to the Woodards’ counsel. According to the Woodards, the problem was
not merely that the checks were not received by Attorneys Peagler or Neff. Rather,
even if the Insurer Grange did prepare the checks within the 10-day window and
put them in the mail, it could not reap the benefits of Georgia’s mailbox rule (and
have this count as “acceptance” of the offer) because the evidence showed that
Grange did not properly print the mailing address on the checks. The Woodards
emphasized that filling out checks is not the same as making payment.
The Insurer Grange filed a reply contending that the parties formed a
binding settlement contract pursuant to § 9-11-67.1 when it assented, in writing, to
the five material terms in the Woodards’ offer. The Insurer Grange also stressed
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that, under Georgia law, any ambiguities in the written offer as to its terms had to
be construed against the Woodards (as their attorney drafted the letter).
On June 25, 2015, the district court granted the Woodards’ motion for
summary judgment and denied the Insurer Grange’s cross-motion, concluding that
the parties never formed a contract. The district court first concluded that
O.C.G.A. § 9-11-67.1 does not prohibit a party from requiring payment as a
condition of acceptance of a settlement offer. Then, looking at the Woodards’
offer, the district court determined that the Woodards, in fact, made timely
payment a condition of acceptance of their offer.
The district court then turned to whether the Insurer Grange complied with
the payment requirement. The district court stated that any ambiguity in the offer’s
provision that “payment in the amount of $50,000 must be made payable . . .
within ten (10) days after your written acceptance” was cured by the following
sentence in the offer letter, which stated that “[t]imely payment is an essential
element of acceptance.” The district court found that “payment” required more
than writing checks. Also noting that the Woodards’ letter did not define the term
“payment,” the district court ruled that payment required the Insurer Grange’s
delivery – and the Woodards’ receipt – of the checks, citing “60 AM. JUR. 2d
Payment § 1 and Black’s Law Dictionary 1243 (9th ed. 2009).” The district court
noted that the Woodards notified the Insurer Grange that timely payment had not
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been received and that the Insurer Grange acknowledged that there had been a
mailing address error on the checks. The district court concluded that the Insurer
Grange failed to pay on time, that it consequently failed to accept the Woodards’
settlement offer, and that the parties thus had not formed a binding settlement
agreement.
The Insurer Grange appealed from this order.
II. STANDARD OF REVIEW
This Court reviews a district court’s grant of summary judgment de novo.
All. Metals, Inc. v. Hinely Indus., 222 F.3d 895, 897 (11th Cir. 2000). Summary
judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Federal courts sitting in diversity apply the substantive law of the forum
state. See Tech. Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843,
844 (11th Cir. 1998). Here, we apply Georgia’s contract law. See S. Med. Corp.
v. Liberty Mut. Ins. Co., 454 S.E.2d 180, 182 (Ga. 1995) (stating that settlement
agreements made in Georgia or under Georgia law are formed and enforced in the
same way as any other contract).
III. DISCUSSION
The issue on appeal is whether the Insurer Grange accepted the Woodards’
settlement offer, thereby forming an enforceable contract. This issue requires
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analysis of several sub-issues, including but not limited to: (a) whether the Insurer
Grange’s written letter of acceptance was sufficient to accept the Woodards’ offer
and form a binding settlement contract; (b) whether, instead, payment (by delivery
or mailing) was also required as a condition of acceptance; (c) whether such a
requirement would be permissible under Georgia law (a question that implicates
O.C.G.A. § 9-11-67.1); and (d) whether the Woodards’ offer was ambiguous and,
if so, what effect that has on the above issues. We set forth the parties’ arguments
on appeal before analyzing the relevant Georgia statute. We then state the certified
questions.
A. The Insurer Grange’s Arguments
The Insurer Grange makes two arguments: one is based on statutory
interpretation, and the other interprets the terms of the Woodards’ settlement offer.
First, the Insurer Grange claims that its written acceptance of the Woodards’ offer
sufficed to form a contract under O.C.G.A. § 9-11-67.1. The Insurer Grange also
contends that this statute prohibits unilateral contracts. Second, the Insurer Grange
claims that it properly accepted the Woodards’ offer, even setting-aside the statute,
because (a) the Woodards’ offer only required a written acceptance from the
Insurer Grange within 30 days to form a contract, and (b) even if timely payment
was a condition of acceptance, the offer only required that the Insurer Grange
timely issue settlement checks, not actual receipt by the Woodards.
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In unpacking its first (statutory) argument, the Insurer Grange analyzes
subsections (a) and (b) of § 9-11-67.1. The Insurer Grange notes that, under
subsection (a), any offer to settle a tort claim for personal injury or death arising
from a motor vehicle accident must be in writing and contain five “statutorily-
defined material terms.” These five terms are: (1) the time period within which
such offer must be accepted, which shall be not less than 30 days from receipt of
the offer; (2) the amount of monetary payment; (3) the party or parties the claimant
or claimants will release if such offer is accepted; (4) the type of release, if any, the
claimant or claimants will provide to each releasee; and (5) the claims to be
released. O.C.G.A. § 9-11-67.1(a). The Insurer Grange notes that, under
subsection (b), “the recipients of an offer to settle made under this Code section
may accept the same by providing written acceptance of the material terms
outlined in subsection (a) of this Code section in their entirety.” Id. § 9-11-67.1(b)
(emphasis added). Thus, when the offeree accepts the subsection (a) material
terms of an offer in writing, there is a contract between the parties under § 9-11-
67.1. It follows, the Insurer Grange concludes, that the statute prohibits unilateral
contracts that require acceptance in the form of performance – here, payment.
In this case, the Insurer Grange notes that the Woodards’ offer letter cited
§ 9-11-67.1 and included the five subsection (a) material terms, evidencing an
intent to enter into a binding contract pursuant to the statute. The Insurer Grange
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asserts that because it then fully complied with § 9-11-67.1 by providing the
Woodards with a timely written acceptance letter assenting to these five material
terms, a contract was formed. All of the offer’s other terms thus concerned the
Insurer Grange’s performance obligations under the parties’ contract and were not
conditions of acceptance of the offer.
As to its second (contract-interpretation) argument, the Insurer Grange
contends that, even setting-aside the § 9-11-67.1 statute, it properly accepted the
Woodards’ offer because the offer required only written acceptance, not
performance, to bind the parties. The Insurer Grange points to items 1 and 2 of the
Woodards’ offer, which gave Grange 30 days to “accept” the offer in writing. The
Insurer Grange argues that the remaining nine items detailed in the offer (including
payment), which were scheduled to happen after the 30-day “acceptance” deadline,
were necessarily conditions of performance. The Insurer Grange emphasizes that
the offer created ambiguity by first stating that written acceptance was required
and then stating that “timely payment” (a form of subsequent performance) was
“an essential element of acceptance.” The Insurer Grange stresses that, under
Georgia law, this ambiguity must be resolved against the Woodards because their
attorney drafted the offer letter, and contends that the district court erred in doing
the opposite.
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Moreover, the Insurer Grange claims, to the extent that the offer demanded
timely payment as a condition of acceptance, Grange met this requirement because
it only had to make the settlement checks “payable” within 10 days (i.e., make
them out or “issue” them) – not deliver them. The Insurer Grange highlights that
the Woodards’ offer letter explicitly required delivery of affidavits by a date
certain, but used different language when discussing payment. The Insurer Grange
claims that the Woodards could have used the same delivery or “must be received”
language when discussing payment, but did not do so. Thus, the Woodards’ offer
did not require delivery or receipt of the checks within 10 days, and the Insurer
Grange accepted the offer (at the latest) when it “ma[de] out” the checks. The
Insurer Grange challenges that it is at least ambiguous whether delivery of
payment was required, and again stresses that the offer’s ambiguities must be
resolved against the Woodards (as the drafters).
B. The Woodards’ Arguments
The Woodards first argue that their offer letter clearly and unambiguously
required timely payment as a condition of acceptance, stressing that it twice stated,
in prominent locations, that “[t]imely payment is an essential element of
acceptance.” They contend that courts cannot read a contract in a way that renders
a provision meaningless, and that this Court therefore cannot ignore this demand in
their offer letter. The Woodards contend that they made both (a) written
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acceptance of the offer within 30 days and (b) payment 10 days thereafter
conditions of acceptance of their offer. Because no payment was made within the
later 10-day window, no settlement contract was formed ab initio.
On the issue of whether the Insurer Grange satisfied the “timely payment”
requirement, the Woodards contend that Grange failed this requirement by not
properly addressing and mailing the checks to them. The Woodards argue that
merely issuing and “filling out” checks does not constitute “payment,” and that
payment requires cutting and mailing checks with proper addresses. Because the
record indisputably shows that the checks were not properly addressed for mailing,
their argument continues, the Insurer Grange did not make timely payment within
10 days of responding to the offer in writing, and thus did not accept the
Woodards’ offer. Therefore, the Woodards conclude, a binding contract was never
formed. 2, 3
As to § 9-11-67.1, the Woodards claim that their offer complied fully with
the statute. They contend that nothing in § 9-11-67.1 suggests that it outlawed
unilateral contracts or that a claimant could not require material terms beyond the
2
The Woodards also emphasize that the Insurer Grange could not properly accept their
offer merely by putting the checks in the mail pursuant to Georgia’s mailbox rule, given that
Grange’s mailings were improperly addressed.
3
Although the Woodards’ briefing indicated that the Insurer Grange’s mistake was in not
delivering payment to the Woodards within the deadline, the Woodards clarified their position at
oral argument that Grange’s mistake was in not properly mailing payment.
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ones listed in subsection (a) as conditions of acceptance. They further note that,
under Georgia common law, they were free (as the “masters of their offer”) to
require both written acceptance and timely payment 10 days later as a condition of
acceptance. They stress that a statute may not be read to contradict common law
rules (under Georgia law) unless it does so in plain and explicit terms. Thus, the
Woodards conclude, this Court should not find that the § 9-11-67.1 statute
displaced the common law rule given that the statute did not do so explicitly.
In fact, the Woodards claim, the § 9-11-67.1 statute clearly permitted the
parties to enter a unilateral contract. They highlight subsection (c) of the statute,
which states that “[n]othing in this Code section is intended to prohibit parties from
reaching a settlement agreement in a manner and under terms otherwise agreeable
to the parties.” O.C.G.A. § 9-11-67.1(c). The Woodards assert that subsection (c)
permitted the parties to set their own settlement terms, that the Woodards did so by
making timely payment an essential element of acceptance, and that the Insurer
Grange agreed to this term (consistent with subsection (c)) in its response letter by
not objecting to it. The Woodards also note that subsection (g) of the statute states
that “[n]othing in this Code section shall prohibit a party making an offer to settle
from requiring payment within a specified period,” arguing that this further
supports their ability to make timely payment a condition of acceptance. Id. § 9-
11-67.1(g).
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Additionally, the Woodards argue that, even if the statute prohibited the type
of offer they extended, the statute does not authorize “blue pencil[ing]” the offer
and concluding that there was a binding agreement. Instead, this Court should find
that no meeting of the minds occurred and that no contract was formed. 4
C. The Insurer Grange’s Reply
On reply, the Insurer Grange argues that the Woodards have downplayed the
extent to which § 9-11-67.1 was meant to circumscribe common law, and
emphasizes that the statute prescribed acceptance in the form of a written
unequivocal acceptance of five specific material terms. Looking back at the offer
letter itself, the Insurer Grange also again stresses that its terms are ambiguous.
The Insurer Grange urges that the statement, “[t]imely payment is an essential
element of acceptance,” should not control this Court’s reading of the offer. The
Insurer Grange notes that the offer letter also stated that Grange was to “accept” in
writing within 30 days of receipt, and that the offer required the actual delivery of
specific items, such as affidavits, but notably did not specifically require delivery
of payment. The Insurer Grange interprets a case cited by the Woodards (that
4
The Woodards also attack the notion that “public policy considerations” weigh in favor
of the Insurer Grange’s appeal. The Woodards argue, inter alia, that the Insurer Grange’s failure
to pay was not caused by an unreasonable deadline set by the Woodards but by Grange’s
decision to procrastinate on payment and use a dysfunctional system to send them the checks.
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discusses tendering payment) as supporting Grange’s argument that making a
check “payable” does not necessarily entail delivering payment. 5
D. Analysis of § 9-11-67.1
“Absent a limiting statute or controlling public policy, parties may contract
with one another on whatever terms they wish and the written contract defines the
full extent of their rights and duties.” Effingham Cty. Bd. of Comm’rs v. Park W.
Effingham, L.P., 708 S.E.2d 619, 622 (Ga. Ct. App. 2011) (quotation marks
omitted). In this case, there is a statute that arguably limits the parties’ common-
law freedom to contract. In 2013, the Georgia General Assembly enacted
O.C.G.A. § 9-11-67.1, which governs “causes of action for personal injury, bodily
injury, and death arising from the use of a motor vehicle on or after July 1, 2013.”
Id. § 9-11-67.1(h). The relevant parts of the statute read as follows:
(a) Prior to the filing of a civil action, any offer to settle a tort claim
for personal injury, bodily injury, or death arising from the use of a
motor vehicle and prepared by or with the assistance of an attorney
on behalf of a claimant or claimants shall be in writing and contain
the following material terms:
(1) The time period within which such offer must be
accepted, which shall be not less than 30 days from
receipt of the offer;
5
The Georgia Defense Lawyers Association (“GDLA”) filed an amicus brief in support of
the Insurer Grange’s position. We need not outline amicus arguments for the purposes of this
opinion but assume this amicus, and probably others, will make their arguments to the Georgia
Supreme Court that they deem fit. The GDLA concludes, inter alia, that the parties entered an
enforceable settlement agreement when the Insurer Grange accepted the Woodards’ offer in
writing.
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(2) Amount of monetary payment;
(3) The party or parties the claimant or claimants will release
if such offer is accepted;
(4) The type of release, if any, the claimant or claimants will
provide to each releasee; and
(5) The claims to be released.
(b) The recipients of an offer to settle made under this Code section
may accept the same by providing written acceptance of the
material terms outlined in subsection (a) of this Code section in
their entirety.
(c) Nothing in this Code section is intended to prohibit parties from
reaching a settlement agreement in a manner and under terms
otherwise agreeable to the parties.
(d) Upon receipt of an offer to settle set forth in subsection (a) of this
Code section, the recipients shall have the right to seek
clarification regarding terms, liens, subrogation claims, standing to
release claims, medical bills, medical records, and other relevant
facts. An attempt to seek reasonable clarification shall not be
deemed a counteroffer.
(e) An offer to settle made pursuant to this Code section shall be sent
by certified mail or statutory overnight delivery, return receipt
requested, and shall specifically reference this Code section.
...
(g) Nothing in this Code section shall prohibit a party making an offer
to settle from requiring payment within a specified period;
provided, however, that such period shall be not less than ten days
after the written acceptance of the offer to settle.
Id. § 9-11-67.1. There are no published state or federal cases interpreting this
statute.
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It has been posited that the General Assembly’s goal in passing § 9-11-67.1
was to address the negative effects of Southern General Insurance Co. v. Holt, 416
S.E.2d 274 (Ga. 1992). See Alex Galvan & Ashley Worrell, Civil Practice: Civil
Practice Act, 30 Ga. St. U.L. Rev. 39, 41 (2013). In Holt, the Georgia Supreme
Court held that an insured had a bad-faith claim against her insurance company
when the company failed to “settle a claim within the policy limits based on a
time-limited settlement offer by the injured person’s attorney.” Holt, 416 S.E.2d at
275. The injured party’s attorney originally gave the insurance company 10 days
to accept a settlement offer, but then extended the deadline another 5 days, for a
total of 15 days. Id. In Holt, the Georgia Supreme Court made clear that it was not
condoning tactics by which plaintiff’s attorneys give unreasonably short deadlines
for accepting an offer, but held that when an insurance company had “knowledge
of clear liability and special damages exceeding the policy limits,” it had a duty to
respond to a deadline to settle and to ultimately settle the claim. Id. at 276
(emphasis omitted).
A perceived concern about Holt, whether right or wrong, was that it was
arguably enabling plaintiffs to present settlement offers “with impossible deadlines
and expose [the] insurance company to potential ‘bad faith’ claims when it is
unable or unwilling to abide.” Galvan & Worrell, supra, at 40. In enacting § 9-11-
67.1, the General Assembly reportedly sought to reduce bad-faith claims by giving
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insurance companies adequate time to investigate claims and offers before having
to decide whether to settle. Id. at 42, 44. The Act was arguably meant to be a
compromise between the plaintiff and defense bars and to reduce “procedural
quibbling over the technical sufficiency of a settlement offer.” Id. at 44-45.
Section 9-11-67.1, while meant to create a clear procedure, is arguably
ambiguous with respect to its requirements. On one hand, the statute appears to
contemplate that an offeree will accept the offer in writing. The statute lists
material terms that must be included in the offer and then states that “the recipients
of an offer to settle . . . may accept the same by providing written acceptance of the
material terms.” O.C.G.A. § 9-11-67.1(a)-(b). It also states that the offeror can
require payment within a limited timeframe, provided the time “period shall be not
less than ten days after the written acceptance of the offer to settle.” Id. § 9-11-
67.1(g) (emphasis added). Taking these provisions together, the statute appears to
contemplate that the written acceptance of the offer comes first and forms a
binding settlement contract. On this view, the statute contemplates payment being
a term of contract performance, not contract formation.
On the other hand, the statute goes on to say that it is not meant “to prohibit
parties from reaching a settlement agreement in a manner and under terms
otherwise agreeable to the parties.” Id. § 9-11-67.1(c). This provision arguably
permits the parties to contract in any manner they see fit, although this would allow
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them to override the statute’s other provisions by contracting around the procedure
outlined above. Under Georgia law, we should avoid “interpreting statutes in a
manner that renders any portion of them surplusage or meaningless.” Hill v.
Owens, 738 S.E.2d 56, 60 (Ga. 2013).
IV. CERTIFICATION
This Court has said that certification may be appropriate when there are
insufficient sources of state law to allow a principled rather than conjectural
conclusion. See Royal Capital Dev., LLC v. Md. Cas. Co., 659 F.3d 1050, 1055
(11th Cir. 2011) When there is substantial doubt about the correct answer to a
dispositive question of state law, a better option than purely guessing may be to
certify the question to the state supreme court. See In re Cassell, 688 F.3d 1291,
1300 (11th Cir. 2012), certified question answered sub nom. Silliman v. Cassell,
738 S.E.2d 606 (Ga. 2013).
While this Court can always examine Georgia’s canons of statutory
construction to attempt to determine how Georgia courts would interpret a statute,
there is no Georgia precedent interpreting or applying the specific statute at issue
here. Furthermore, § 9-11-67.1 controls Georgia settlement agreements arising
from automobile accidents, and thus any interpretation of § 9-11-67.1 will have
far-reaching consequences. Certification in this case allows the Georgia Supreme
Court to interpret this new Georgia law in the first instance.
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Because the relevant facts are undisputed and this appeal depends on
interpretations of Georgia law, we certify the following questions to the Georgia
Supreme Court:
(1) UNDER GEORGIA LAW AND THE FACTS OF THIS
CASE, DID THE PARTIES ENTER A BINDING
SETTLEMENT AGREEMENT WHEN THE INSURER
GRANGE ACCEPTED THE WOODARDS’ OFFER IN
WRITING?
(2) UNDER GEORGIA LAW, DOES O.C.G.A. § 9-11-67.1
PERMIT UNILATERAL CONTRACTS WHEREBY
OFFERORS MAY DEMAND ACCEPTANCE IN THE FORM
OF PERFORMANCE BEFORE THERE IS A BINDING,
ENFORCEABLE SETTLEMENT CONTRACT?
(3) UNDER GEORGIA LAW AND THE FACTS OF THIS
CASE, DID O.C.G.A. § 9-11-67.1 PERMIT THE
WOODARDS TO DEMAND TIMELY PAYMENT AS A
CONDITION OF ACCEPTING THEIR OFFER?
(4) UNDER GEORGIA LAW AND THE FACTS OF THIS
CASE, IF THERE WAS A BINDING SETTLEMENT
AGREEMENT, DID THE INSURER GRANGE BREACH
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THAT AGREEMENT AS TO PAYMENT, AND WHAT IS
THE REMEDY UNDER GEORGIA LAW?
The phrasing of these certified questions is not intended to restrict the
Supreme Court’s consideration of the issues or the manner in which the answers
are given. To assist the Supreme Court’s consideration of this case, the entire
record and the parties’ briefs shall be transmitted to the Georgia Supreme Court.
QUESTIONS CERTIFIED.
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